Can you demote an employee on fmla

In most cases, yes, an employee who requests leave under the FMLA is protected from termination or demotion. However, there are exceptions that would allow an employer to terminate an employee even while she is on FMLA leave.

In the end, the court concluded that the employer terminated the employee for exercising her rights under the FMLA, and required the employer to reinstate her to her position. An employer may also terminate an employee on FMLA leave if it finds that the employee engaged in insubordination, fraud, or other banned conduct during their leave.

What can you do? May you eliminate his position? Does it matter that you had considered restructuring his position prior to his leave? The Tenth Circuit Court of Appeals whose decisions apply to Wyoming, Colorado, Utah, New Mexico, Kansas and Oklahoma addressed this scenario, offering insight into how to address these difficult business decisions.

Janczak v. Tulsa Winch, Inc. July 20, The FMLA provides unpaid, job-protected leave for certain qualifying reasons, including a serious health condition that makes the employee unable to perform the functions of his or her position.

When an employee returns from FMLA leave, he or she must be returned to the same job or an equivalent job that is virtually identical to the original job in terms of pay, benefits, shift, location and other conditions.

What if the employee was earmarked for a demotion or termination prior to going out on leave? Or perhaps your company loses a big contract while the employee is out on leave, necessitating a reduction in force.

Will you be liable then? He also announced that two new hires would report directly to the General Manager in Canada suggesting the GM position would continue to exist and that Janczak would likely return to work and be able to travel that September. It pointed to its development of a matrix reporting structure that allowed most of the Canadian department heads to report directly to the executives at corporate headquarters in Oklahoma.

It also fired its longtime Canadian Controller, due to the matrix restructuring. Janczak filed both interference and retaliation claims against Tulsa Winch. The district court in Oklahoma agreed, granting summary judgment to Tulsa Winch. Instead, to avoid a trial on the interference claim, the employer needs to show that termination would certainly have occurred regardless of the leave.

The court stated:. The court noted that in a typical FMLA retaliation claim, the employee has been restored to his or her prior employment status and then suffers an adverse employment action based on incidents after the return to work. Here, Janczak was never restored to his prior employment status, leaving the court to conclude that it fits into an interference theory rather than a retaliation theory. To further explain the difference between FMLA interference and retaliation claims, the court said this:.

You should make records of the reason for the demotion and communicate with the employee that it is not due to his status. Russell Huebsch has written freelance articles covering a range of topics from basketball to politics in print and online publications.

He graduated from Baylor University in with a Bachelor of Arts degree in political science. By Russell Huebsch. Wrongful Termination Checklist. Your email address will not be published. May 16, Leave of Absence 0 Comments Can you be demoted while on a medical leave of absence from work? But What happens when a serious illness gets thrown into the mix for the employee himself or an immediate family member? What if an employee is injured and needs surgery which will require time off from work to recover?

What if you take a leave of absence and as a result, you are fired? How to ask for a leave of absence Can you be demoted for being off sick? What to do when you are demoted? The number of people you work with may be important It seems odd, but the number of people employed by the organization or company you work for maybe a significant factor in whether you have a leave of absence claim.

Your leave may last up to 12 weeks As an employee, you may have the right to take up to 12 workweeks for your leave of absence. Your employer can give you more time off than the law requires and you can hold them to it Your employer has to meet certain standards the law sets out for providing leave to employees.

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